In Re: David L. Fuller; Betsy L. Fuller v. Deutsche Bank National Trust Company, As Trustee For the Registered

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Before Torruella, Circuit Judge, Souter, *fn1 Associate Justice, and Boudin, Circuit Judge.

David and Betsy Fuller bought land in Tyngsboro, Massachusetts in 1991, and built on it their single-family residence where they have lived ever since. In 2003, the Fullers refinanced their mortgage, obtaining a $256,500 loan from Encore Credit Corp. (“Encore”). Although scheduled to close a day earlier, the loan in fact closed on August 12, 2003. Later that year the mortgage was assigned to Deutsche Bank National Trust Co. (“Deutsche Bank”). The Fullers fell behind on their payments to Deutsche Bank, which in 2008 initiated foreclosure proceedings and rejected the Fullers’ requests to rescind the mortgage. The Fullers then filed a voluntary Chapter 13 bankruptcy petition.

On April 11, 2008, the Fullers filed a complaint in bankruptcy court against Deutsche Bank, seeking rescission under Massachusetts law. As later amended, the complaint charged that the mortgage was rescindable because Encore had failed to provide the proper closing and rescission dates and, separately, on the ground that Encore had failed to provide the Fullers with “high cost home mortgage loan” disclosures. The remaining count sought damages from Deutsche Bank under Chapter 93A of the Massachusetts General Laws because Deutsche Bank had not complied with the Fuller’s pre-suit rescission request.

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